MAR-2-05 CO:R:C:V 734162 AT
Mr. Jens Leuschner
Fabrik Fur Schreibgerate, GmbH
D-4902 Bad Salzuflen 1
RE: Location of country of origin marking on pens and markers;
legible; conspicuous; 19 CFR 134.41, HQ 733940
Dear Mr. Leuschner:
This is in response to your letter, dated April 16, 1991,
requesting a binding ruling on the sufficiency of the country of
origin marking on a soft liner (Reference No. 1820), 4 pens
(Reference Nos. 2170, 2080, 2020, 1148 and 1500), a highlighter
marker (Reference No. 1735) and Funny-Pen (Reference No. 1500).
Samples of the pens, softliner, highlighter marker and Funny-
Pen in question were submitted for our review.
The softliner (Reference No. 1820) is composed of a plastic
body and removable plastic cap. A pocket clip measuring
approximately 1 5/8" high and 1/4" wide is attached to the cap
portion of the softliner. A logo in the shape of a tree is
marked on the front top portion of the clip. The words "Made in
W. Germany" appear under the clip in clear and distinct raised
letters which are in the same color as the clip, cap and body of
the pen in lettering approximately 4 1/2 point (a point is a unit
of measurement approximately equal to 0.01384 inches or nearly
1/72 inch and all type sizes are multiples of this unit).
Reference Nos. 2170, 2080, 1148 and 2020 are all ball-
point pens composed of a long plastic body. Either a metal clip
(Reference Nos. 2170 and 2080) or a plastic clip (Reference Nos.
1148 and 2020) is attached to the body of the pens. A tree
logo also appears on the top portion of each pen clip. On the
two metal clip pens about 1/8 inch above the tree logo the word
"Germany" is engraved in lettering approximately 2 1/4 point. On
the other two plastic clip pens the word "Germany" appears on the
side of the plastic clip in raised lettering which is in the same
color as the clip, button and body of the pens in lettering
approximately 4 1/2 point. The lettering on one of the plastic
clip pens (Ref. No. 2020) is so faint that it is virtually
impossible to see even upon an intense examination of the clip.
The highlighter (Reference No. 1735) marker is composed of a
plastic cap and body. A yellow plastic clip is permanently
attached to the plastic cap. In addition a yellow plastic band
1 3/8 inch in width wraps around the entire marker separating the
cap from the body indicating the color of the highlighter. At
the bottom of the highlighter near the lefthand corner the word
"Germany" appears in raised lettering which is in the same color
as the body in lettering approximately 4 1/2 point. The tree
logo also appears directly to the right of the word "Germany".
The Funny-Pen (Reference No. 1500) is a two piece ball-point
pen composed of a plastic body and tapered plastic cap. The cap
extends over half the length of the pen and a leather string is
attached to the top to be used around the neck instead of a clip.
Above the string at the top of the cap the words "Made in West
Germany" are printed in raised lettering approximately 4 1/2
point which is in the same color as the cap.
You state that these pens and markers from W. Germany will
mainly be distributed for advertising campaigns by your
customers. You also state that it is impossible for technical
reasons to consider the markings in the injection molds for the
body of the pen/marker. In addition, you claim that the marking
would disturb the print (advertising message) which will be done
by your customers.
Is the country of origin marking on the softliner, pens,
highlighter marker and Funny-Pen sufficiently legible and
conspicuous to satisfy the requirements of the marking law?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304) provides that, unless excepted, every article of foreign
origin imported into the U.S. shall be marked in a conspicuous
place as legibly, indelibly, and permanently as the nature of the
article (or container) will permit, in such a manner as to
indicate to the ultimate purchaser in the U.S. the English name
of the country of origin of the article. Congressional intent in
enacting 19 U.S.C. 1304 was that the ultimate purchaser should be
able to know by an inspection of the marking on the imported
goods the country of which the goods is the product. "The
evident purpose is to mark the goods so that at the time of
purchase the ultimate purchaser may, by knowing where the goods
were produced, be able to buy or refuse to buy then, if such
marking should influence his will." United States v.
Friedlaender & Co. 27 C.C.P.A. 297 at 302 (1940). C.A.D. 104
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. As provided in section 134.41(b), Customs
Regulations (19 CFR 134.41(b)), the country of origin marking is
considered conspicuous if the ultimate purchaser in the U.S., is
able to find the marking easily and read it without strain.
In HQ 733940 (October 24, 1991), Customs set forth some
factors to be considered in determining if the country of origin
marking on imported pens is conspicuous within the meaning of 19
CFR 134.41 and 19 U.S.C. 1304. Customs stated that among the
factors to be considered is the size of the marking, the location
of the marking, whether the marking stands out, and the
legibility of the marking. Customs also stated that the size of
the marking should be large enough so that the ultimate
purchaser can easily see the marking without strain. The
location of the marking should be in a place on the pen where the
ultimate purchaser could expect to find the marking or where
he/she could easily notice it from a casual inspection. Whether
the marking stands out is dependent on where it appears in
relationship to other print on the article and whether it is in
contrasting letters to the background. The legibility of the
marking is determined by the clarity of the letters and whether
the ultimate purchaser could read the letters of the marking
without strain. Furthermore, Customs said that no single factor
should be considered conclusive by itself in determining whether
a marking meets the conspicuous requirement of 19 CFR 134.41 and
19 U.S.C. 1304. Instead, it is the combination of these factors
which determines whether the marking is acceptable.
In applying these factors to the submitted samples, we first
find that the country of origin marking "Made in W. Germany" on
the softliner (Reference No. 1820) underneath the plastic clip is
not conspicuous. Although the marking is large enough and the
letters are easy to read, it is neither in a place where an
ultimate purchaser would expect to find it nor can the marking be
easily noticed from a casual inspection. In order to find the
marking an ultimate purchaser would have to lift up on the clip
and simultaneously read the words "Made in W. Germany". This
country of origin marking is virtually impossible to find and
cannot be considered conspicuous.
With respect to the two metal clip pens (Reference Nos.
2170 and 2080) which are marked "Germany" on the top portion of
the clip directly above the tree logo, we find that the country
of origin marking is not conspicuous in size, location or
legibility. The print size is only 2 1/4 point and can only be
seen by straining the eyes. Moreover, unlike the letters on the
softliner which are clear and distinct, the letters on the metal
clip pens are not clear and are hard to read. Also an ultimate
purchaser would not expect to find the country of origin marking
of the pen to be on the top portion of the clip which in this
case is very small as compared to the body of the pen.
Similarly, with respect to the two plastic clip pens
(Reference Nos. 1148 and 2020) we find that the country of origin
marking is not conspicuous in location or legibility. An
ultimate purchaser would have to turn the pen clip at just the
right position in order to read the word "Germany" marked on the
side of the clip. This marking is not in a location which can
be easily noticed by an ultimate purchaser upon a casual
examination. When coupled with the fact that the raised letters
"Germany" are in the same color background as the plastic clip,
the marking cannot be considered conspicuous. Moreover, as
indicated above, with respect to Reference No. 2020 the
lettering is so faint that it is virtually impossible to see even
upon an intense examination of the clip.
With respect to the highlighter marker (Reference No.
1735), we find that the marking does not appear in a conspicuous
location nor is it legible. The country of origin marking is
located on the bottom of the marker which we do not consider a
place where an ultimate purchaser would expect to find such a
marking prior to purchase. If one was to make a casual
inspection of the marker the word "Germany" would not be noticed
unless the marker was turned upside down . Also, the marking
"Germany" which is in the same color as the bottom of the marker
is not clear nor can it be easily read without strain. Taken
together the marking is not conspicuous.
Last, we find that the marking "Made in W. Germany" which
is placed on the top of the plastic tapered cap of the Funny-Pen
(Reference No. 1500) is not in a conspicuous location nor are the
letters legible. An ultimate purchaser would not expect the
country of origin marking to be in this location of the pen
especially when the cap has a rope attached to it which would
hinder finding any marking place near it. Also, an ultimate
purchaser would not easily notice the marking unless he/she was
to look directly down on top of the pen and once finding the
marking he/she could not easily read the word "Germany" since it
is in lettering in the same color as the cap. Based on these
considerations we find that the submitted samples are not
conspicuously marked with the country of origin.
We also note that you have not provided sufficient
documentary evidence to support your claims that it is
technically impossible to mark the injection mold body of the pen
or marker with the country of origin and that the marking if
placed on the body would disturb the advertising print which will
be done by your customer. Accordingly, we can not rule of these
The country of origin markings on the submitted samples as
described above are not conspicuous within the meaning of 19 CFR
134.41 and 19 U.S.C. 1304.
John Durant, Director
Commercial Rulings Division